The Queen v Biddle - [2008] NZCA 398

IN THE COURT OF APPEAL OF NEW ZEALAND

CA243/2008
[2008] NZCA 398

THE QUEEN

JAMES HEMI BIDDLE

Hearing:24 September 2008
Court:Glazebrook, Rodney Hansen and Ronald Young JJ
Counsel:R D Stone for Appellant

A Markham for Crown
Judgment:30 September 2008 at 2.30 pm

JUDGMENT OF THE COURT

A An extension for time for appealing is granted.

B The appeal is dismissed.

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REASONS OF THE COURT

(Given by Glazebrook J)

Introduction

Mr Biddle was convicted, after a trial in the Napier District Court before Judge Adeane and a jury, on one count of aggravated robbery. He wishes to appeal against his conviction. Mr Biddle’s notice of appeal was late but an adequate explanation for the delay has been given. An extension of time to appeal is granted.
Mr Biddle’s conviction appeal is on two grounds:
(a)The summing up failed to differentiate between reliability and credibility.
(b)The trial Judge did not fairly summarise the defence case and the summing up in totality was unjustly favourable to the Crown.

Background

At about 11.10 pm on 29 August 2007 a car drew up outside a BP Service Station in Hastings. The rear passenger got out of the car, placed a red bandanna over his face and entered the service station, where he robbed the attendants at knifepoint of approximately $125 in cash. He returned to the car, which sped off towards Flaxmere. A witness noted the registration number and the car was stopped en route a short time later by Police.
The car was found to have three occupants: Mr Biddle, his brother-in-law, Mr Joseph Tawhito, and his cousin, Ms Kura Tumanako. It was common ground at trial that Mr Biddle was sitting in the front passenger seat of the car while the aggravated robbery took place. It was also common ground that the robber was Mr Tawhito, and the driver was Ms Tumanako.
The Crown alleged that Mr Biddle knowingly assisted in the aggravated robbery by acting as a lookout. For this submission, it relied on the evidence of a witness, Mrs Singh, who was parked on the forecourt at an angle alongside the robbers’ car. As the robber got out of the rear door and put on his bandanna, she heard a male voice (inferentially Mr Biddle’s) yell “go!”, and the robber ran inside. As he did so, she saw the front passenger put what Mrs Singh described as a black and white bandanna over his face. He looked towards the road and then turned back and looked towards her, possibly twice. She said that the robber then ran back to the car, a man’s voice again said “go!” and the car sped off.
Mr Biddle denied that he had taken part in the robbery. He told Police that he and Mr Tawhito had been picked up by Ms Tumanako earlier that evening to go for a “ride”. He said that he was drunk and “half-asleep” and had no idea what was happening. He only “woke up a bit” when they…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v Biddle

Details

AGLC: The Queen v Biddle [2008] NZCA 398
Case: [2008] NZCA 398
Decision Date: 30 September 2008

CaseChat Overview and Summary

The appeal in the case of The Queen v James Hemi Biddle was heard in the Court of Appeal of New Zealand. Mr. Biddle, the appellant, sought to challenge his conviction for aggravated robbery, which was determined by the Napier District Court. The grounds of appeal were twofold: first, that the summing up by the trial judge failed to distinguish between the reliability and credibility of the pivotal witness, Mrs. Singh; and second, that the summing up did not fairly summarise the defence case, thereby being unjustly favourable to the Crown. The appeal was lodged after the time limit had passed, but an adequate explanation for the delay was provided, leading to the court granting an extension of time to appeal.

The trial had established that Mr. Biddle was a passenger in a car from which a robbery was committed. The Crown's case relied heavily on the testimony of Mrs. Singh, who observed the events from another car parked nearby. Mr. Biddle's defence centred on his claim of being unaware of the robbery due to being drunk and asleep at the time. The appeal focused on the trial judge's summing up, particularly whether the judge adequately differentiated between the reliability and credibility of Mrs. Singh's testimony, and whether the summing up was balanced in presenting both the Crown's and defence's cases.

The Court of Appeal found that while the trial judge's summing up could have been clearer in distinguishing between reliability and credibility, the context of the trial and the judge's overall direction ensured that the jury would not have misunderstood their task. The court noted that the judge's comments, when taken in context, would have been understood as referring to the witness's reliability. Additionally, the court held that the summing up was not unfairly favourable to the Crown, as it highlighted the essential features of the defence's case and did not prejudice the jury against the appellant. The court concluded that none of the issues raised individually, or in combination, amounted to a miscarriage of justice.

The appeal was dismissed, and an extension for time to appeal was granted.

Orders